Florida Foreclosure Lawyer

If you have been reading this blog regularly, or if you have just skimmed the articles, you probably have heard that the Florida Supreme Court (FSC) has a task force that was working hard last year at trying to come up with ideas to break the log jam of foreclosure cases strangling Florida’s courts. Along with recommending mediation in all new foreclosure filings (a recommendation adopted by the FSC in December of 2009) one of the proposals was for a change to the Florida Rules of Civil Procedure and the FSC approved forms published for use in accordance with the rules. These proposed amendments were fast-trascked by the Supremes in order to have them implemented as soon as possible.

On February 11, 2010, the Florida Supreme Court issued its written opinion adopting the proposed rule changes in their final forms. The most significant change was an addition to Florida Rule of Civil Procedure 1.110(b), which added language that all new foreclosure complaints filed in the state had to be verified, which means that they must be attested to by the Plaintiff, asserting that all the information in it is true and correct, under penalty of perjury. In its opinion, the Justices explained that this was being done to encourage the banks to ensure that they had all the proper documentation proving their claims to be able to foreclose on the subject property BEFORE commencing a suit. The Justices also noted that foreclosure complaints frequently contain contradictory statements where in one count, the bank claims to own the note and mortgage, and in the next count, they are asking the court to reconstruct a lost note and/or mortgage!

The significance of this requirement should not be understated. The FSC is threatening banks with perjury charges if they continue to bring their frequently incorrect and fraudulent cases before Florida courts, and at the same time, sending those courts a signal through this rule change to deal harshly with Plaintiffs that are clearly abusing the judicial system. This should start getting interesting soon…

Other changes were less dramatic, but potentially just as important for homeowners. One change homeowners in foreclosure definitely need to be aware of, is the change to form 1.996(b), Motion to Cancel Foreclosure Sale. The previously approved forms did not require very much in the way of grounds for requesting the cancellation, which the Justices felt may allow for cancellation of sales without valid grounds. The new forms will require more information.

Lastly, a modification of the form filed by process servers when they are unable to personally serve an individual were modified to require more information from the process server. Since many foreclosure actions are done through a process called “service by publication” the FSC felt homeowners and their attorneys should have more information available to them to determine whether the attempts at service were sufficient.

The full text of the opinion (Docket number SC09-1460) with the actual changes adopted, can be viewed at:

http://www.floridasupremecourt.org/decisions/opinions.shtml

15 Fla. L. Weekly Supp. 453a
Mortgages — Foreclosure — Complaint dismissed for failure to state cause of action — Only document presented by plaintiff in support of claim that it owns and holds note and mortgage was mortgage payable to another party — Purported assignment filed in response to motion to dismiss, which did not contain name of assignee or recording information for mortgage, only clouds ownership issue
DEUTSCHE BANK NATIONAL TRUST COMPANY, TRUSTEE FOR GOLDMAN SACHS-FFMLT-2004-FF3, Plaintiff, v. SCOTT POPE, et al., Defendants. Circuit Court, 4th Judicial Circuit in and for Duval County. Case No. 16-2007-CA-008285-XXXX-MA, Division G. March 7, 2008. Lance M. Day, Judge. Counsel: Mark Olivera and Mark S. Kessler, for Plaintiff. Lynn Drysdale, for Mr. Pope.
ORDER GRANTING DEFENDANT, SCOTT POPE’S
MOTION TO DISMISS COMPLAINT
This case came on to be heard on February 11, 2008 on Defendant, Scott Pope’s Motion to Dismiss Complaint. The parties were represented by counsel and the Court having heard argument of counsel and reviewed the file and having been sufficiently advised in the premises, finds:
1. On or about September 18, 2007, Plaintiff, Deutsche Bank National Trust Company, Trustee for Goldman Sachs-FFMLT-2004-FF3 filed the above-styled case claiming a default in the mortgage and mortgage note attached to the Complaint.
2. The only documents attached to the Complaint were a letter from the Law Offices of Marshall C. Watson and a Mortgage payable to First Franklin Financial Corporation along with a prepayment rider, a planned unit development rider and an adjustable rate rider. No note was attached to the Complaint.
3. In response to the Defendant’s motion to dismiss, Plaintiff filed a Notice of Filing. Attached to the Notice was a Corporate Assignment of Mortgage dated March 4, 2004. This assignment was executed by Steve Barnett, a Vice President of Mortgage Operations of First Franklin Financial Corporation on March 4, 2004. This document does not reflect the recording information for the mortgage purportedly assigned and does not provide the name of an assignee. A copy of this assignment is attached hereto. [Editor's note: attachment omitted]
4. Rule 1.210(a) of the Florida Rules of Civil Procedure provides, in pertinent part:
Every action may be prosecuted in the name of the real party in interest, but a personal representative, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party expressly authorized by statute may sue in that person’s own name without joining the party for whose benefit the action is brought. . .
5. The only documents presented by the Plaintiff in support of its allegations that it owns and holds the subject note and mortgage do not support this allegation. Plaintiff has failed to provide a copy of the note; and the mortgage attached to the Complaint is payable to a different party. The assignment filed by Plaintiff only acts to cloud the ownership picture further. When exhibits are inconsistent with allegations of material fact as to who the real party in interest is, such allegations cancel each other out. Fladell v. Palm Beach County Canvassing Board, 772 So.2d 1240 (Fla. 2000); Greenwald v. Triple D Properties, Inc., 424 So. 2d 185, 187 (Fla. 4th DCA 1983); Costa Bella Development Corp. v. Costa Development Corp., 441 So. 2d 1114 (Fla. 3rd DCA 1983).
6. No Florida case holds that a separate entity can maintain suit on a note payable to another entity unless the requirements of Rule 1.210(a) of the Florida Rules of Civil Procedure and applicable Florida law are met. Corcoran v. Brody, 347 So. 2d 689 (Fla. 4th DCA 1977).
7. Because of the inconsistencies apparent in the documents filed by Plaintiff, this Court said not address the standing issue at this time.
Based upon the foregoing, it is ORDERED and ADJUDGED
A. Defendant’s Motion to Dismiss Plaintiff’s Complaint is granted for failure to state a cause of action.
B. Plaintiff shall have thirty (30) days from the date of this order to file an amended complaint.
C. Defendant shall have thirty (30) days from the date of service of the Plaintiff’s amended complaint to file responsive pleadings.

Posted By George Beckus Esq
The Golik Law Firm
904-448-5335